State Sup. Ct. Affirms Harassment and Breach of Peace Conviction for Posting Pages from Diary to Facebook
I blogged about this case a few years ago at the appeals court stage. (“Conviction for Posting Pages From Teenager’s Diary Via Mail and Facebook Partially Reversed“.) In a nutshell, the defendant was accused of taking, without permission, pages from the diary of her boyfriend’s teenage daughter (reflecting intimate details of her life) and posting them to a Facebook page. Below is a description of facts from the prior blog post:
P [the boyfriend]’s daughter [M] kept a diary where she chronicled her thoughts and activities. Around the time of M’s graduation, she received a message that there was a Facebook profile with the name “Tasha Moore,” containing details that bore a resemblance to M. When M viewed the page, she saw a message that:
[M] . . . get so drunk at parties that boys know she is an easy hookup. In April at [A’s] house party she gave [O] a blow job and then threw up. [O] calls her deep throat JAP. [M] told her friends that . . . she thought giving the best BJ would help make [O] her boyfriend. You wonder why some . . . [high school] girls never learn to behave around boys.
M was upset. The Facebook profile also contained photographs of M’s diary entries, which contained the details mentioned above. M asked “Moore” to take down the page and threatened to go to the police. When Moore did not take down the page, M went to the police.
Later that day, P received an envelope containing copies of pages from M’s diary, along with a letter purporting to be from a friend of M’s. The friend supposedly told her mom about the story referenced in the letter and was sharing the story with P at the suggestion of her mom. P and M took the materials to the police.
The next day, P had dinner with the defendant and recounted the goings on. The defendant said that she was the one who had a conversation with a girl (presumably a friend of M’s) and she supposedly received the materials from the anonymous girl, which she then sent to P. Defendant promised to keep her “source” confidential and declined to disclose the source’s identity to P. In any event, there was no dispute that defendant sent copies of the pages from M’s diary to P.
The investigating officers served subpoenas on Facebook and Cablevision and supposedly received information linking the IP address used to register the Tasha Moore account with the defendant. She was charged with harassment and breach of the peace. (She was also charged with interfering with an officer, but she was not convicted of this charge.)
Defendant was convicted of two offenses: (1) breach of the peace and (2) harassment. The breach of the peace conviction required:
publicly [posting] offensive, indecent or abusive matter concerning any person . . . with the intent to cause inconvenience, annoyance or alarm.
The harassment statute reached anyone who:
With intent to harass, annoy or alarm another person . . . communicates with a person by . . . mail, . . . computer network . . . or by any other form of written communication, in a manner likely to cause annoyance or alarm.
Were the pages from the diary “publicly” posted when posted to a friend-only Facebook account? The trial court agreed with the state that despite the pages in question being apparently posted to a small group of people, they were nevertheless publicly posted. The appeals court disagreed and said that the putative victim’s testimony on the accessibility of the material was equivocal and perhaps contradictory, and the trial court itself was confused on the effect of privacy settings on a Facebook page. In the view of the court of appeals, because the pages in question were posted to a Facebook account accessible to a small group of (8) people, they were not “publicly” posted (i.e., the offense requires the material to be generally disseminated). The appeals court said that at a minimum the state was required to adduce additional evidence in the form of expert testimony on this point.
The State Supreme Court disagreed because “basic concepts” such as Facebook’s “general privacy settings” are matters of ordinary knowledge that do not require expert testimony. Further, the court says that the putative victim’s testimony in this was not contradictory:
‘‘Q. So . . . you were never friends with Tasha Moore?
‘‘A. Yes, but her page was unprivate.
‘‘Q. Okay, you never became friends with Tasha Moore?
‘‘A. You could see it. No, but I have gone on through [my friend’s] Facebook and had seen it through his page.
‘‘Q. Thank you. You went on through your friend’s Facebook page to see it?
‘‘A. Yes. Then could see everything through mine.
‘‘Q. I understand it. But, you weren’t invited in and you didn’t see it from anyone else’s page but [your friend’s]?
‘‘A. Right, everybody else had been invited except me.
‘‘Q. Okay, everybody else, all eight other people or all seven or eight people?
‘‘A. Multiple people had been invited, [but] not every- body accepted.
‘‘Q. All right. So, it’s a private invitation. You have to be invited in?
‘‘A. Sure.’’ (Internal quotation marks omitted.) Id., 156.
The court does not delve into the question of whether something accessible via 8 people was publicly posted (or perhaps the court understood the above testimony to mean that the pages were accessible by the general public).
Whether Defendant Posted Material About the Victim With the Intent to “Inconvenience, Annoy or Alarm” the Victim? Apart from finding that the state sufficiently proved the defendant posted the material in question, the court also finds the remaining elements of the offense met. Specifically, the court says there was sufficient evidence that the defendant posted material about the putative victim with the intent to inconvenience, annoy, or alarm the victim. The court looks to the posts and the surrounding context to find that the posts could easily have “vexed” or “provoked” the victim.
The defendant argued that the posts were not directed to the putative victim and this undermined any intent to annoy, inconvenience, or alarm the victim, but the court says this is not necessary because the posts:
(1) stated her first and last name, where she went to high school, and her graduation year; (2) contained her signed diary entries; and (3) included a photograph of her. The offensive remarks also specifically targeted M and no one else.
Whether Posting of the Materials Also Constitutes Harassment? Defendant also argued the appeals court was wrong in affirming the harassment conviction. The State Supreme Court agrees with the state, again looking to the postings themselves and the surrounding circumstances:
In the present case, the trial court reasonably could have found that the circumstances surrounding the mailing, the contents of the mailing, and the defendant’s behavior thereafter demonstrate beyond a reasonable doubt her intent to harass, annoy, or alarm P or M through the mailing. The defendant could have brought the diary entries to P, her boyfriend of more than two years, directly, but she instead, as she admitted, sent them anonymously. The anonymous nature of the mailing served to increase P’s and M’s anxieties because they did not know who had intruded into M’s bedroom and copied her diary entries, how the mailer had obtained the entries, or who else might have access to them. P, in fact, testified that he felt ‘‘violated’’ that M’s diary entries were in ‘‘someone else’s hands.’’
The money quote comes near the end of the opinion, which forecloses the most forceful argument defendant had at her disposal:
We agree with the state, and conclude that the Appellate Court did not abuse its discretion by determining that the defendant’s constitutional claims were inadequately briefed.
Further review (by the US Supreme Court) was probably a long shot to begin with, but this probably dooms that possibility as well. It’s disappointing that the court passes up an opportunity to strike down a statute criminalizing speech intended to cause annoyance. (Contrast with a North Carolina Supreme Court decision I recently blogged about striking down a cyberbullying statute: “North Carolina State Supreme Court Strikes Down Cyberbullying Statute”.) A loose test for a criminal breach of the peace conviction sounds like a recipe for censorship. The result in this case can be contrasted with State v. Drahota, where the court said sending politically charged emails could not support a breach of the peace conviction. (Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota.)
The cases raises a perennially interesting topic of whether a post that is merely about someone but not communicated directly to them can constitute harassment. The Georgia Supreme Court’s ruling in Chan v. Ellis is a good example of a case that dealt with this directly. (“GA Supreme Court Fixes Overbroad Injunction Against Message Board Operator–Chan v. Ellis”.) A recent appeals court case from Florida (Scott v. Blum) also confronted this issue in the context of an injunction prohibiting cyberstalking.
A final, equally interesting aspect of the ruling dealt with whether the material was posted publicly, which is a prerequisite for a breach of the peace conviction. The court never reconciles the court of appeals’ definition of public (generally available) with the fact that the material here was posted to a page that 8 people were invited to. And the court’s discussion of the Facebook privacy settings and the victim’s testimony were equivocal at best. The victim testified that she had to view the page in question “through her friend’s” Facebook account, but once there, she could “could see everything through [hers]”. Say What!? The existence of how-to materials instructing users on the use of Facebook’s privacy settings is a testament to the average consumer’s challenges in understanding them. Given the difficulty courts and litigants have had with Facebook’s privacy settings, it was surprising to see the court conclude that the accessibility of the page was a matter of sufficient common knowledge and experience that anyone could testify about it. At a minimum, the court could have said that the state failed to carry its burden on this element of the offense.
Added: I reached out to Buhl’s counsel for comment and his response (which he sent via email) is below:
Great endorsement for Facebook bad day for First Amendment rights of Reporters.
The decision seems to ignore well founded and traditional distinctions between public versus private spaces. In doing so it appears as if prior social media “evidence” concerns addressed in our Court of Appeals have been subordinated to empirical data, purporting to establish that everybody has and ought to be familiar with Facebook—its just not that technical. I disagree of course with the Court’s view but the beauty of our system is that the ruling may not be the final word on the subject. The Supreme Court of the United States has looked at social media platforms in a couple of different cases and given Facebook’s popularity and its apparent societal indispensability, the law and social media convergence will undoubtedly prompt even more heavy litigation in the near future. Some of the most influential and landmark decisions in our country’s history have began with inconsistent appellate level decisions so I am certainly not discouraged by the course of treatment we have received, even though I disagree with aspects of the Buhl decision. Great rulings have to start somewhere and I think Ms Buhl’s case raises very important and cutting edge legal issues.
While Facebook is a popular social media platform, its technical aspects are beyond the ken of many, and reference to different aspects of the platform without the benefit of expert or other qualified witness testimony places a court or jury at a disadvantage in the search for the truth—inferences are skewed in direct proportion to the technical complexity not being understood. In our arguments to the Court we did not claim that rational inferences cannot be made as part of the thought process that goes into jury or fact finder deliberation.
I fully agree that reasonable inferences can be drawn on the basis of timing, location, possession, and identity, in many cases. These attributes, which I believe are considered by the Buhl court in reaching its decision, are generally common sensical and even empirically observable items for consideration. But whose kidding who here? All of these attributes are subject to manipulation, cloning, hacking, disguise and a host of other means of skewing in a social media platform. Seeing something with one’s own eyes at lunch time is not the same as seeing a date stamped picture of somebody on Facebook at lunch time. The inferential value of facts rooted in a social media platform is diminished in direct proportion to the vulnerability of the platform and the extent to which the platform is removed from reality. The fact that a social media platform is great for sharing photos and communicating with friends does not support the proposition that inferences based on real life conversations and sharing in the context of the platform are identical. Accordingly, the process of inference making in reality is not identical to Facebook counterpart. There are a host of sub inferences and propositions that must obtain before the two worlds can be treated similarly.
Moreover, this most obvious fact is not rescued by the commonality proposition inherent in the court’s Facebook proposition. In short, we need to catch up with the technology, and so does our inference making.
We deal in the currency of evidence in a criminal trial. By its very nature this proposition invokes reliability considerations. Just because a text comes to somebody from my cell phone number, doesn’t mean I sent it. From the most basic presumption that it’s not another person using my cell phone, to whether the text is sent from a cell phone at all, requires investigation. What might at first glance appear to be a straight forward inference is sometimes, upon closer examination, not even possible. There are a whole host of other inferences related to the scope of the operative technology that must be made and established before the reliability of a proposition can even be ascertained. What troubles me about the Buhl decision is that the distinction between the real world and the social media world is short shifted where circumspection appears to be warranted.
So while the decision is a ringing endorsement of Facebook and its place in our society, I am reluctant to agree that in the more important affairs of life, and in the context of decision making that can lead to incarceration, its underlying technology is just too plain to be contested.
We must catch up with the technology when it comes to our consideration of analogs. We have to begin not by abandoning well know and traditional definitions of legal and logical concepts but by attempting to marry them consistently with their functional equivalents in cyberspace. Today I am not so sure that my Facebook status or the the idea of a Facebook invitation is so clearly analogous to real world instantiations of the same that my inferences upon them can be treated identically. For me, I still believe that if I specifically invite 6 people to my private yard party by written invitation noting the same, and an uninvited guest walks through an open gate to my yard, my private party doesn’t morph into a public affair. This conclusion is an intuitive one for most; we need to ensure that reliance upon legal analysis of social media platform evidence comes with the same intuitive flair.
The commonality argument is a slippery slope and our current plan is to consider asking the Court to reconsider, and possibly taking this issue up with the United States Supreme Court.
Regarding the First Amendment claims made on behalf of Ms. Buhl as a reporter, we believe our argument was and continues to be just as novel as it is simple. The Court draws inferences about Ms. Buhl’s intentions rooted in her choice to remain anonymous to protect a source. As a journalist, she is not similarly situated, and the Court completely ignores the significance of this fact, claiming that the argument is confusing and not fleshed out to the degree necessary for the issue to be considered. Ironically, it is a novel issue, a first impression argument, that would not be rooted in a significant body of case law. It is not about the number of pages Counsel spends on a given argument that makes it reviewable. And while the court agrees, it spends a couple paragraphs counting. For what ? We stand firmly by our claim that Ms. Buhl’s constitutional arguments were presented in a cognizable manner, however novel or unique, and the Court appears to have avoided the First Amendment question in part, by establishing an abuse of discretion standard applicable to its ability to review the lower Court’s ruling on the adequacy of a constitutional claim. Here, the argument is simple, and it was explained simply; Ms. Buhl is not similarly situated to other criminal defendants. Because she is a reporter, and has an obligation to protect her sources, her behavior in communicating anonymously, or at all for that matter, cannot be viewed in the same way as it might be for non-reporters. She took her obligation to protect her source over an opportunity to explain how she is innocent of the charges and that they have the wrong person. Sadly but admirably she may shortly be incarcerated for the principle, and the argument has not yet even been reached for consideration by a Court in Connecticut. Accordingly, we will also consider asking the Supreme Court to reconsider this Federal Constitutional issue, and depending on the outcome, serious consideration will be given to asking the United States Supreme Court to do so.
Case Citation: State v. Buhl, 2016 WL 3348419 (CT June 21, 2016) [pdf]